from the politcal-speech dept

We were just discussing how the DMCA interferes with political speech, and the EFF brings up another example. Apparently, John Kasich, who's running for governor in Ohio, put out a commercial that purported to show a local steelworker talking about how unhappy he was with the current governor, Ted Strickland. Strickland's campaign folks apparently realized that the "steelworker" was really an actor, and put together the following video, mixing in clips of some of the actor's other work:

The video was put up on YouTube... and then it was taken down via a DMCA notice. Now, it wasn't by Kasich's campaign. Instead, it was by Arginate Studios, one of the studios that had used the actor in a film. That particular clip is exceptionally brief in the ad. As the EFF notes, this is so blatantly a case of fair use as to be ridiculous. Beyond the fact that it's a tiny snippet, for political speech, used in a way that doesn't compete with the original movie (at all), apparently the film in question is already available for free online, as it was a part of a film festival, where the entries are viewable online.

What's troubling, yet again, is that this form of political speech has been removed from YouTube in the heat of an election battle. Even if the takedown was not political, it's clearly a case of copyright law being used to stifle political speech. The EFF asks Arginate to withdraw the takedown and asks YouTube to put the video back up (without waiting for the whole 10 to 14 day period in the DMCA).

from the the-internet-never-forgets dept

You may remember a story from last year about a convicted murderer in Germany trying to use a law that was designed to protect an individual's name and likeness from unwanted publicity, to demand Wikipedia remove all information about him, such as his murder conviction. Apparently, some US politicians think something similar is a good idea. Thomas O'Toole points us to a report of an Ohio state senator who has proposed a bill that would allow repeat offenders the ability to "delete their record" from public view, which (stunningly) might also require newspapers to remove all old articles about their arrests and convictions:

Under threat of a $250,000 fine, the bill would require individuals, newspapers and other news media to delete stories from the Internet and their archives about the arrests and convictions of those who win expungement orders.

If a party knowingly released information about a sealed conviction, they would face a $500,000 fine. The damages would double to $1 million if the banned information was available on the Internet.

As the article notes, this almost certainly violates the First Amendment and the concept of prior restraint. The state senator in question, Shirley Smith, claims that people are misinterpreting the bill, and it was not intended to apply to news stories (even though, as written, it certainly appears to do exactly that). Smith says that language requiring "business organizations" to not publish such information is actually targeted at former employers of individuals, saying they cannot disclose a conviction to potential new employers. The idea behind the bill is to make it easier for ex-convicts to get jobs. Of course, it's still difficult to see how disclosing factual information like that should ever be considered illegal.

from the evidence,-please? dept

Forget faulty speed cameras. Don't worry about police just guessing when they can't quite make out your license plate on a red light photo. Fear not the police who misread driving through a green light as running the red. Over in Ohio, apparently a court has said that police don't need any real evidence at all to charge you with speeding. They just need to make a "visual estimate" in their own judgment as to whether or not you were speeding:

In a 5-to-1 ruling, the court said an officer's "unaided visual estimation of a vehicle's speed" is strong enough to support a ticket and conviction. A radar speed detector, commonly used by patrolmen, is not needed, the court concluded.

"Independent verification of the vehicle's speed is not necessary to support a conviction for speeding," assuming the officer has been trained and certified by the Ohio Peace Officer Training Academy or similar organization, Justice Maureen O'Connor wrote for the court's majority.

from the didn't-expect-that,-did-you.. dept

Last year, we wrote about an odd antitrust lawsuit against Google by a company named TradeComet. The lawsuit was a joke. Basically, the company was an arbitrage player that tried to create spam-like pages that people would find on Google searches, and would make money by then getting people to click on pay-per-click ad links to get where they really wanted to go. Google properly classifies sites like this as spam, and its ranking methodology punished the site accordingly. It had nothing to do with being "anti-competitive," it was just Google making sure its search results were better for users. That lawsuit is basically in a holding pattern right now, as the judge considers Google's motion to dismiss.

However, a similar lawsuit has popped up, and it's a bit strange. Eric Goldman has all the murky details, of how a shopping search engine named myTriggers apparently got a line of credit from Google and used it to buy a bunch of AdWords search ads to drive traffic to its site (and then raised money based on the resulting traffic). Once again, Google rejiggered its algorithm, and suddenly the ads for myTriggers were a lot more expensive (by one to two orders of magnitude). The company couldn't pay its bill to Google, so Google hired a local lawyer (in Ohio) and went to court to try to get myTriggers to pay the $335,000 it owed. Simple enough.

Except that myTriggers returned fire by claiming antitrust violations by Google, and even went out and hired three separate lawfirms, including (conspiracy theory time) the same law firm that represented TradeComet and which is closely connected to Microsoft. As Goldman notes:

I am struggling to make sense of myTriggers' litigation choices. Assuming myTriggers even has the money, writing a $335k check to Google (and I bet Google would have taken less!) is almost assuredly cheaper than paying three law firms to mount an antitrust assault on a $20B/year behemoth. Assuming that myTriggers wants to maximize profits, then either (1) myTriggers thinks its odds are good enough that it will win AND make enough money to pay the 7 lawyers on the counterclaim's signature page plus their teams, or (2) the law firms struck an unbelievably sweet deal on fees.

Goldman also notes that Google probably wishes it hadn't filed a claim in a local Ohio state court, as the antitrust battle might now need to be fought there, rather than in a friendlier federal court closer to home:

Whatever the case, I suspect the antitrust claims caught Google flat-footed. A simple and low-stakes collections matter has blown up into a potentially significant lawsuit in an undesirable forum. Google chose Ohio state court for the collections matter despite its AdWords contract, so now it will have a tough time extricating itself from that court. But I suspect it would rather have an antitrust case in federal court, not state court--often (but not always) federal judges are more sophisticated than state judges and less susceptible to hometown bias. And I'm sure Google would rather fight antitrust claims on one of the coasts than in the Rust Belt, especially if myTriggers argues that Google's evilness cost Ohioans jobs. Google probably didn't mean to offer battle in this venue, but someone did a really good job of seizing the opportunity and forcing Google to fight the battle in a suboptimal setting.

As with the TradeComet case, the antitrust claim from myTriggers sounds incredibly weak, and it probably should be thrown out, but given the uncertainties of it being filed in the local court, Google may have to take it a bit more seriously. And, of course, the possibility of a secret Microsoft connection makes this even more interesting. Still, I can't see this getting that far in the long run. I hope that the judge recognizes the basic weaknesses of the case: here's a company that relied entirely on a single supplier who had every right to change its policies if it felt it didn't deliver a good customer experience, and it did so. myTriggers now seems to be suing as some sort of sour grapes for its own business failings.

from the too-much-free-time dept

The uproar over "sexting" -- kids taking nude pictures of themselves and sending them with their cameraphones -- is in full swing, with lots of politicians looking to wring some publicity out of it. In our earlier post about the Pennsylvania prosecutor who threatened to bring child-porn charges against some kids for taking their own pictures, Steve L left a comment noting that a politician in Ohio plans to introduce legislation that would make sexting a misdemeanor offense. He says he wants to criminalize the activity to protect kids from the "extra burden" of being charged with felony sex offenses. It's bizarre, though, as he says that teen sexters "did something stupid, but I don't think anyone wants for them to be called sex offenders," and "I think what these teens need is education about how this type of behavior could affect their lives." So the way to educate them is to make them criminals?

from the counting-votes-is-soooo-hard dept

Following last week's revelation of votes lost in California thanks to Premier (better known as Diebold) and its voting equipment, The Register points us to even more votes lost by Premier/Diebold machines in Ohio. Again, it was only because of a special, rare, spot check, which isn't commonly done with these machines, that the lost votes were noticed. And, as usual, Diebold... er... Premier downplayed the discovery:

"We have not seen this particular condition anywhere else in Ohio or anywhere else in the country."

Is it really that difficult for the company to admit that it screwed up? For quite some time now, pretty much every investigation and every more detailed look at any kind of e-voting equipment have turned up similar failures. For the company to brush it off because it hasn't seen "this particular condition" anywhere else is ridiculous. It does make you wonder, though, why anyone would ever buy such equipment and use it in an actual election.

from the a-little-Friday-humor dept

Earlier this week, we wrote about Ohio's lawsuit against Premiere Elections Systems -- better known by its previous name, Diebold -- where we noted Premiere's claim that the problems were the fault of antivirus software. That didn't make much sense, as we noted, but Randall Munroe has explained just how ridiculous this is (in a way that only he can) with his latest xkcd comic:

Premiere/Diebold, of course, were at the heart of early stories about e-voting machine flaws, and the company consistently fought against anyone who suggested there was anything wrong with its machines, despite overwhelming evidence. Instead, it tried to bully those who spoke out against the company, or paint them as extremist kooks. Yet, with each passing story, it appears that the concerns were very, very real. As per usual, Premiere/Diebold is doing little to actually address the issues in this particular lawsuit, claiming:

"We certainly feel strongly that we, in fact, have fulfilled the contract with the state of Ohio. It's a high-quality voting system that continues to operate in many, many Ohio counties with great success."

I'm not sure if the "contract" allowed for completely dropping votes, but assuming it did, that's hardly something to brag about. Also, pointing out that other states use the same machines isn't a defense -- it should be an alarm for those other states to start investigating as well. Other than that, Premiere/Diebold has relied on its usual defense: "It wasn't our fault!" Instead, the company claims that antivirus software interfered with the voting tabulation system. That's a pretty weak excuse -- especially since (as Ohio points out) the system was certified with antivirus software installed. Besides, what kind of software is Premiere/Diebold building if antivirus software causes it to lose votes? Not the type of software I'd want running my elections.

from the good-luck-trying-to-pull-out-the-evidence dept

While it's difficult to believe some of the more conspiracy-minded theories that have gone around concerning voting results from Ohio in 2004, the simple fact that there's absolutely no way to go back and review the results highlights exactly the problem with e-voting machines. Ohio's current secretary of state has now declared some of the machines used in the '04 election as a crime scene to be investigated, but everyone admits that there's little to no chance of being able to recreate what actually happened on election night, and no way to tell if the machines acted properly or if they malfunctioned. And, if they did malfunction, there's no way to tell if it was due to an accident or something underhanded. In other words, whether or not everything worked great or everything worked terribly, there's simply no way to tell. That is why so many of us have trouble with the concept of e-voting machines. Even if they work perfectly, there's no way to confirm that -- and it just leads to more speculation and conspiracy theories about "stolen" elections.

from the no-surprise-there dept

Earlier this year, California found all sorts of problems with e-voting machines used in the state. Now, Ohio, home to some of the more controversial stories surrounding presidential elections, has also found serious flaws in every e-voting machine used in the state. It's the usual stuff that has been pointed out for years: it was easy to pick locks on the machines, introduce fake votes, and load up dangerous unauthorized software onto the machines. Not much new there -- just another confirmation. What's much more interesting is the reaction of the firms involved.

First up is "Premier Election Solution," who you probably would recognize better under its old name: Diebold. The company changed its name a few months ago, hoping people would no longer associate Premier with all of the ridiculously bad history associated with Diebold. A Premier official said that all of the problems noted in the report have been fixed in its new machines. While that's a better response than Diebold's typical response of trashing any researcher who points out a flaw or cracking jokes about the flaws, it's one of the few times we've ever seen Diebold/Premier admit that older machines actually did have significant flaws. Of course, the few times that's happened in the past, it's always come with the same sort of "but everything is fixed now!" clause. And... every time a Diebold/Premier representative says something along those lines, it's only a matter of months until new flaws are announced. So, given Diebold's history, it's pretty difficult to take the company's word that all the flaws have now been fixed.

Even worse, though, is the response of ES&S, who has become even more Diebold-like in its responses to various problems found in its machines. On the Ohio report, ES&S responded: "We can also tell you that our 35 years in the field of elections has demonstrated that Election Systems and Software voting technology is accurate, reliable and secure." Note that this doesn't actually respond to any of the specific criticisms in the report. As for that history, let's take you back to a few of ES&S's greatest hits: this is the company that was caught providing uncertified software to California, while also failing to disclose foreign manufacturing partners (as required by federal law). It's also the company responsible for the well-known case in Florida where thousands of votes went missing and the election in Texas where votes were counted three times. And, of course, let's not forget the internal memos at ES&S which showed the company knew about problems with its software, while publicly stating that the machines were perfectly fine. So, sorry, ES&S, you can try to pretend those things didn't happen, but the history you point to hardly shows that your machines are "accurate, reliable and secure." It shows a company that will say anything to avoid admitting that its machines have problems.